1710046 (Migration)

[2020] AATA 5177

1710046 (Migration) [2020] AATA 5177 (11 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710046

MEMBER:Brendan Darcy

DATE:11 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Aged Parent (Residence) (Class BP) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

·cl.804.221 of Schedule 2 to the Regulations.

Statement made on 11 September 2020 at 10:03am

CATCHWORDS
MIGRATION – Aged Parent (Residence) (Class BP) visa – Subclass 804 (Aged Parent) – sponsor’s extended absence from Australia – waiver of balance of family test, heath checks and character requirements – primary decision notification delayed – parent of settled child – lawfully resident for a reasonable period – significant dependency on the sponsor for accommodation – previous Ministerial intervention for regularising their migration status – decision under review remitted        

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03; Schedule 2, cls 804.212, 804.221

CASES
Gauthiez v MIEA (1994) 53 FCR 512
Hafza v Director General of Social Security [1985] FCA 164
Huang v MIMIA [2007] FMCA 720
Mathai v Kwee [2005] FCA 932
Naiker v MIMA [2002] FCA 888
Re Taylor [1992] FCA 296

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Aged Parent (Residence) (Class BP) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 16 April 2007. At the time the visa application was lodged, the Aged Parent (Residence) (Class BP) visa contained one subclass, Subclass 804 (Parent): Item 1124A in Part 1 of Schedule 1 to the Migration Regulations 1994 (the Regulations). The criteria for a Subclass 804 visa are set out in Part 804 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.804.212 and cl.804.221 in Schedule 2 of the Regulations.

3. The primary criteria must be satisfied by at least one member of the family unit who is an applicant for the visa. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

4. For the purpose of this decision, the first named applicant,  [named], is to be referred to as the first applicant or the applicant; the second named applicant, [named] to be referred to as  the second applicant or the applicant’s wife; the third named applicant, [named], as the third applicant or the applicant’s son; and the fourth named applicant, [named],  is to be referred to as the fourth applicant or the applicant’s daughter.   

5. The sponsor for this Subclass 804 visa under review is, [named].

1. The delegate refused to grant the visas on 20 April 2017 on the basis that the first applicant is an aged parent or a parent of a person (the child) who is a settled Australian citizen, settled Australian permanent resident or a settle eligible New Zealand citizen for the purposes of cl.804.221 and reg.1.03.

2. Each of the visa applicants appeared before the Tribunal on 23 July 2020 to give evidence and present arguments via an audio-visual platform. They were supported by an interpreter in the Mandarin and English languages.

3. The applicants were represented in relation to the review by their registered migration agent, including through a post hearing submission received by the Tribunal on 19 August 2020.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

10.  Clause 804.212 requires that at the time of application the visa applicant be the parent of a settled Australian citizen, Australian permanent resident, or eligible New Zealand citizen.  At the time of decision, the primary criteria to be satisfied include that the visa applicant continues to satisfy the criterion in cl.804.212: cl.804.221(1)(b).

11.  The delegate did not make any adverse findings on 804.212, given the sponsor had been in Australia as a citizen for more than two years at the time of application.

12.  The issue for the Tribunal to determine is whether the sponsor meets cl.804.221(1)(b) at the time of decision. 

Background

The applicants’ and the sponsor’s visa histories

13.  The visa applicants were also all born in Indonesia and citizens of that the Republic of Indonesia. Their dates of birth are as follows: 

[Details deleted.]

14.  The sponsor was born in [year] in the Republic of Indonesia and is an Australian citizen which was conferred upon her in 2005.

15.  The sponsor’s visa history relevantly included arriving in Australia with the visa applicants [in] August 1998 while holding visitor visas. The family applied for [permanent visas].

16.  The sponsor subsequently studies, graduated and was granted permanent residency through an employer sponsorship scheme before she was granted Australian citizenship by conferral [in] 2005. She later withdrew her [previous] visa application while under merits review in August 2006.

17.  Separately to the sponsor, [in] January 2007, the Minister personally intervened to grant the visa applicants substituted subclass 676 visitor visas. For application lodged prior to 23 March 2013, holders of substituted subclass 676 visa were eligible to apply for this subclass of visa, even if the primary visa applicant does not meet the pensionable age requirement.

18.  This application under review for this aged parent visa was then lodged in April 2007.

19.  According to the Departmental records, the sponsor departed Australia [in] October 2009. Her last visit to Australia was for a period of 23 days from [November] 2013 to [December] 2013. To date, she has not returned to Australia.

20.  Since their application for aged parent visas and the substituted subclass 676 visas had expired in April 2007, the visa applicants have been holding bridging visas right up to the present day, i.e. the visa applicants have currently waited more than thirteen (13) years for an outcome of this visa.  (The Tribunal’s emphasis added).

21.  The application has been released from the queue to be assessed for the grant of the visas. At the time of the application in 2007, the applicants declared that they have three children.

22.  The applicants and two of the children included in this application were the holders of a substituted Subclass 676 visas and the sponsor ([named]) was an Australian citizen residing in Australia. Citizenship was conferred to the sponsor [in] 2005. (See folio 250 of the departmental file for a copy of the sponsor’s certificate of citizenship).

23.  On 5 September 2016, an Invitation to Comment letter was sent to the migration agent via email, inviting the applicants to comment and provide information in relation to the sponsor’s extended absence from Australia.

24.  On 11 November 2016, the Department received an email from the Migration Agent, with the following documents (which were resubmitted to the Tribunal).

25.  The visa applicants subsequently were asked to satisfy the waiver of balance of family test, the heath checks and the character requirements, which they did so.

26.  It was not until 20 April 2017, the visa applicants were notified of the delegate’s refusal decision, made on behalf of the Minister. According to the delegate’s decision, this refusal decision was narrowly based on the sponsor’s prolonged absence from Australia that the sponsor was therefore assessed as no longer residing or settled in Australia. As a result, the applicants may be assessed as not meeting clause 804.221.

Evidence before the Tribunal

27.  On 10 May 2017, the visa applicants then validly applied to have that refusal decision reviewed by the Tribunal with the decision record attached.

28.  During the scheduled hearing in July 2020, each of the visa applicants attended the hearing to provide evidence and present arguments as to the reasons these visas should be granted. However. the sponsor was not present. The first and second applicants provided testimony which was often emotionally charged. They explained their long history of unresolved migration status, including the sponsor’s absence from Australia, had strained their relationship.

29.  The applicants were provided with a post hearing opportunity to provide additional statements and arguments including from the sponsor.

30.  On 19 August 2020, the applicants’ representative submitted a legal submission and a number of statements from the sponsor dated 1 October 2009, 11 November 2016 and 13 August 2020 including from the sponsor. An extract of the most recent statement is below:

When I was able to become a citizen of Australia, I was very happy. It made me look forward to the future, but I also felt guilty that the rest of my family were still waiting for their chance to stay here. When I was given the opportunity to sponsor my family, I took it because they were worthy of being citizens of this country too.

I confirm that I continue to consider Australia as my home. However, my husband is currently working in [Country 1]. We got married in Australia and our plan after marriage was to live in Australia. We tried to apply for a job in Australia but were unsuccessful. Meanwhile, my husband had a job opportunity in [Country 1] which we could not pass off, as we needed a means to support our family. We realised that this opportunity was better than having no job at all, and that this job can prepare us for when we return.

We now have two children together and raising my children occupies most of my time. Their growth and wellbeing are my utmost priority. My children are Australian citizens by descent.

Receiving the news that my family's application was rejected due to me not being in Australia was a shock. My parents had pleaded with me to try and come to Australia for the two years that was needed. But at the time, my kids were still very young and my husband was still working for our savings. I felt like I was torn between my obligations to the family that raised me and to the family that I am now raising for myself. It's not easy for me to return for two years at that time because it was not the right time for us.

I once again felt guilty but also confused. From here, the relationship between me and my family started to become strained. It was already difficult to maintain a relationship since we were in different countries; but now all of our conversations would relate to the status of the refusal.

31.  Also attached was evidence of an Australian citizenship certificate pertaining to the sponsor’s daughter, [named]; a term deposit bank statement indicating the sponsor has a sizeable amount of money invested in Australia; and a certificate of title and rate notice indicating the sponsor owns the same residential property in which her parents and siblings reside at [a named suburb].

Is the applicant the aged parent or a parent of settled child?

32.  Clause 804.221(1)(b) requires that at the time of decision, the first applicant who is the holder of a substituted Subclass 676 visa at the time application -- is an ‘parent’ of the child who must be a settled Australian citizen, permanent resident, or eligible New Zealand citizen as defined by r.1.03.

33.  The visa application was made on the basis that the first and second applicant are the parents of the sponsor, [named], for whom there is no controversy being an Australian citizen.

34.  As mentioned above, the first applicant was a parent who had not met pensionable age but held a substituted Subclass 676 visa at the time of application, prior to 23 March 2013.

35.  The evidence before the Tribunal is that the sponsor is the child’ of the first and second applicants. In being satisfied about his relationship, it is also satisfied the third and fourth applicants are the children of the first and second applicant and are siblings of the sponsor. 

36.  At the time of this decision, there is no dispute in this matter the first applicant is an ‘parent’ of the child who is an Australian citizen.  Neither is there any controversy over the second, third and fourth applicants being members of the same family unit at the time of application.

Is the sponsor a ‘settled’ Australian citizen?

37.  The settled requirement is at time of application as well as at time of decision criterion and each case is assessed on an individual basis, with regard given to the facts of the case.  Under policy, it can be said that in normal circumstances, two years is considered to be a reasonable period but there may be exceptions and the facts of each case must be considered on a reasonable basis.

38.  It has not been entirely unreasonable on part of the delegate to find that since October 2009 and the date of his or her decision in 2017 to conclude that the sponsor is not a settled Australian citizen on the basis that she has not resided in Australia other than a brief period in 2013.

39.  However, the definition of ‘settled’ in r.1.03 of the Regulations requires that the relevant person be lawfully resident in Australia for a reasonable period.  As noted by Hely J in Naiker v MIMA [2002] FCA 888, “settled” “is given a particular meaning by the Regulations, whether or not it accords with its ordinary meaning”: at [25]. “Resident” is not defined in the Regulations. Hely J noted its ordinary meaning as “to dwell permanently or for a considerable time”. In the context of r.1.03 his Honour considered that “resident” should be interpreted to mean “ordinarily”, “habitually” or “usually” resident: at [27]. “Hence”, his Honour went on to say, “factors other than the mere length of stay in Australia can be germane to the question of whether a person has been resident in Australia for a reasonable time”: at [28].

40.  While Naiker concerned r.1.03, courts have considered the above expressions or similar expressions in a range of contexts such as social security, taxation and bankruptcy.  The general principles that emerge from the authorities include that “[t]he meaning ordinarily given to the phrases ‘resides’, ‘usually resides’ and ‘ordinarily resides’ is such as to make the result in a given case depend largely upon matters of fact and degree”: Gauthiez v MIEA (1994) 53 FCR 512, per Gummow J. That said, the “application of the general concept of residence to any particular case must depend on the wording, and underlying purposes, of the particular statute”: see Hafza v Director General of Social Security [1985] FCA 164 at [14], per Wilcox J.

41.  In Hafza the purpose and wording of legislation were different to the purpose and wording of the Regulations presently under consideration by the Tribunal.  In Hafza the Court interpreted the expression “usual place of residence” more narrowly than the term “resident”. The general statements made in the case about the term “resident” are still important. They include that as a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever: at [13]. A person does not necessarily cease to be resident in a place because he or she is physically absent. The test is whether the person has retained a continuity of association with the place together with an intention to return to that place and an attitude that that place remains “home”. A person may simultaneously be a resident in more than one place: at [14].

42.  Just as a person may simultaneously be resident in more than one place, so too may a person be ordinarily resident in more than one place: see Re Taylor [1992] FCA 296 and Mathai v Kwee [2005] FCA 932. Re Taylor and Mathai v Kwee were bankruptcy cases involving the question whether a debtor was ordinarily resident in Australia.  In Re Taylor Lockhart J noted that to say that a person is ordinarily resident in Australia must mean something more than that the person is resident in Australia. There must be some element of permanence, to be contrasted with a place where the person stays only casually or intermittently: at [18]. Still, his Honour said, it may, depending on the circumstances, be permissible to say that at a particular time a person is ordinarily resident in each of two or more places even though the person is physically present somewhere else: at [20]. These statements were adopted by Graham J in Mathai v Kwee. Graham J went on to observe that “[i]n the era of wide bodied jet aircraft it is not quite so unusual for people to be ordinarily resident in more than one country”: at [125].

43.  “Reasonable period” is not defined in the Regulations.  In Huang v MIMIA [2007] FMCA 720 the expression was considered in the context of the definition of “aged dependent relative” which provides, in part, that the visa applicant has been dependent on another person “for a reasonable period”. Cameron FM observed that a “reasonable period” need not be lengthy and that individual circumstances will affect what amounts to a reasonable period: at [44].

44.  The Tribunal notes that the Department’s guidelines (Procedural Advice Manual or PAM3) states that for Australian citizen sponsors a lesser eligibility period may be considered when assessing the "settled" criterion, where there are compassionate or compelling circumstances.

45.  In this decision, the Tribunal has also taken particular note of the findings pertaining to Koh (Migration) [2018] AATA 2320 (29 June 2018).[1]

[1] In that decision for a review of Class AX Subclass 103 parent visa application, the presiding Member was satisfied that the evidence indicated that the plans review applicant and his family had to live in Australia permanently were effectively postponed when the visa application was placed in a queue, despite not being in Australia for any substantial period for over six years after the application was lodged. Having examined the evidence, the Tribunal was satisfied that based on employment and other considerations prompted the applicants to depart Australia and these circumstances did not exclude them from satisfying regulation 1.03. 

46.  From one narrow point of view, this matter appears to involve the sponsor to have departed Australia to settle with her husband between 2009 and the date of this decision on a permanent basis. Even when taking into account a short return visit to Australia in 2013, the absence of the sponsor from Australia since has naturally invited decision makers to consider the first applicant is not sponsored by a settled Australian citizen.

47.  However, the Tribunal has considered the countervailing evidence in the context of caselaw and other decisions in relation to the definition of ‘settled’ in regulation 1.03.

48.  Notably there was a period of stay of just over two years by the sponsor since the lodgement of this visa between 2007 and 2009. The Tribunal places some weight on this.

49.  However the sponsor’s subsequent long-term departure from Australia for [Country 1] had been promoted by her marriage to a [Country 1] national where he received a significant job opportunity.   While in [Country 1], the sponsor and her husband have had two children. The sponsor stated that the raising of her children has been her utmost priority and that the opportunity for her new and young family to return to Australia had been elusive, despite her husband applying for job opportunities in Australia. Moving to Australia without suitable employment would have been financially risky and disruptive to their family life. It is entirely reasonable, unexceptional and foreseeable for a young woman to leave her home, even her country of citizenship, to start a family and be settled in another where there is some economic security or certainty for this new family unit. 

50.  In this regard, the Tribunal has found it somewhat curious the sponsor has not visited her parents with her grandchildren in an era of mass international travel. Yet the sponsor has availed her Australian home to her parents and siblings providing a home while their migration status remained unresolved. The visa applicants have spoken of strained family relations arising from the applicants’ uncertain migration status while the sponsor has outlined the emotional hardship between choosing between her new family and her family in Australia. Not unreasonably, the sponsor has prioritised her new family over settling in Australia solely or partly for migration purposes, as the sponsor inform the Tribunal, had been urged by her parents.

51.  The applicant’s representative invited the Tribunal to consider the compelling and/or compassionate circumstances arising from this matter. PAM3 states that for Australian citizen sponsors a shorter period of lawful residence (namely three months) may be considered if there are compassionate and compelling circumstances or the sponsor, having resided overseas for a lengthy period, has returned to Australia and wishes to sponsor family members. As discussed in the hearing, had the Parliament wanted decision makers to consider compelling or compassionate waivers, it would have inserted them into regulations pertaining to this Subclass of visas. The Tribunal finds the department’s specific policy about compelling reasons as one that lies outside the limits of this review application.

52.  The Tribunal nonetheless notes the caselaw in Huang v MIMIA in which the expression was considered in the context of the definition of “aged dependent relative” which provides, in part, that the visa applicant has been dependent on another person “for a reasonable period”. In these individual circumstances there is a significant dependency of the visa applicants on the sponsor for secure accommodation for a substantial amount time while experiencing an uncertain migration status. The Tribunal has also reflected upon the salient feature of this aged parent visa application has been the 2007 personal intervention of a Minister granting of the substitute 676 visitor in order for the applicants to the opportunity to otherwise regularise their migration status. The Tribunal is unable to look behind all the the compelling reasons a Minister favourably intervened in this matter. It would be reasonable to assume it involved the emotional impact on the sponsor as an Australian citizen and that the length of time the visa applicants had resided in Australia without their migration status being resolved. These aspects of the applicants’ visa histories have provided additional context in considering whether the sponsor is settled Australian for a reasonable amount of time.

53.  Relatedly and critically, the Tribunal has placed particular emphasis on her Australian citizenship and her children, the sponsor have provide some evidence that amounted to an element of permanence through property owning a fixed asset and continuing community ties by using that fixed asset to shelter her relatives in Australia and not to generate, for instance, rental income.

54.  The Tribunal places a little but not notable favourable weight on liquid savings in a term deposit remaining in Australia in this regard.

55.  The evidence, cumulatively considered, indicates that the plans of the sponsor, an Australian citizen, to remain and live in Australia on a permanent or settled basis was interrupted by her life taking on a new trajectory whereby her forming a marriage took her away from the visa applicants and Australia. This trajectory involved travelling to [Country 1] to support her husband’s professional career and forming a family (with two Australian citizen children). There is insufficient evidence to the contrary to explain the sponsor’s absence from Australia or that she, with her family, does not intend to reside to Australia on a long term or permanent basis. It accepts the oral and written evidence that the sponsor genuinely intended to return to Australia but was stymied by not finding suitable work and other circumstances.  

56.  In this matter, the Tribunal notes the caselaw indicates that an Australian citizen can be settled in two national jurisdictions at once and her ongoing and meaningful connections to Australia, the Tribunal is able to overcome its reservations about the specific lengthy time the sponsor has not been in Australia. It finds the sponsor’s return to Australia is a postponement contingent on more favourable and understandable circumstances and that this amount to her being a settled Australian citizen while maintain meaningful connections to Australian community. Furthermore, it satisfied the sponsor is a settled Australian citizen whose reasonable explanations for her postponed return to Australia amounts to the sponsor being a settled Australian citizen for a reasonable amount of time for the purposes of regulation 1.03 of the Regulations.

57.  In summary, having satisfied cl.802.212, the Tribunal is further satisfied that at the time of decision the first applicant continues to satisfy the criterion in cl.804.212 and reg.1.03. 

58.  The Tribunal accordingly finds that at the time of decision the first applicant was sponsored in accordance with the regulations and therefore satisfies cl.804.221(1)(b).

59.  The parties in the matter should be aware that the Tribunal reached this decision based on a cumulative consideration of the available evidence and only marginally in their favour.

Conclusion

60.  For the reasons given above the Tribunal finds that the father of [the sponsor] satisfies the requirements of cl.804.221

61.  It would therefore be appropriate for the other applications pertaining to [the sponsor’s] other relatives to be reconsidered against the secondary criteria. 

62.  Given the findings above, the appropriate course is to remit the visa applications for the Minister to consider the remaining criteria for a Subclass 804 visa

DECISION

63.  The Tribunal remits the applications for Aged Parent (Residence) (Class BP) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

·cl.804.221 of Schedule 2 to the Regulations.

Brendan Darcy
Member